THE ART AND COMMERCE OF SONGWRITING IN THE DIGITAL AGE
The life of a Nashville songwriter is a glamorous parade of hit songs, money, No. 1 parties and awards shows ... or at least, so country music fans think. While those things can and do happen, the reality of the average songwriter's career in Music City is a much darker picture in 2016.
Over the course of the last 15 years, the changes that digital technology has brought to the marketplace have caused the music business to shrink exponentially across the board, as lucrative CD sales dried up and gave way to downloading that paid significantly less (or nothing, in the case of illegal downloading). Songwriters have been particularly ravaged by the rise of streaming services including Spotify, Pandora or Rhapsody, which can provide small payouts on enormous numbers of streams.
The result is an all-or-nothing economy for songwriters, in which those who write hit radio singles can still do well, while it's very realistically possible for a songwriter who has multiple cuts from big-name artists that are not chosen as radio singles to make very little money. In the new economic model of the Nashville music business, there's neither the room nor much reason for song publishers — who typically pay songwriters a draw to write songs, then recoup their money when that writer earns royalties on cuts — to invest in writers who are not producing immediate results.
We've lost 90 percent of all American songwriters over the past 15 years. You just can't earn a living anymore.
The marketplace moving primarily to single-song downloads and streams has almost entirely done away with the mechanical royalties writers used to collect on each sale of a physical album or CD that contained one of their songs. Songwriters used to be able to make a living from getting songs cut by a major artist who was going to sell a large number of records, whether or not their songs were released as a radio single. That's no longer true.
"Twenty years ago because of mechanicals, a co-written song on a platinum album could make you 25 grand," songwriter Steve Bogard explains. "If you had four of those in a year, that's a reasonable living salary, and so your publisher can easily afford to give you a big chunk of that in front, because he knows he's gonna get it back."
Bogard's credits include cuts for Reba McEntire, Tim McGraw, Trace Adkins, George Strait, Rascal Flatts, Dierks Bentley and many more, including No. 1 hits for Bentley ("Every Mile a Memory"), Strait ("Carrying Your Love With Me," "Carried Away") and McEntire ("New Fool at an Old Game") and others. He's one of the co-writers on Dustin Lynch's current single, "Seein' Red." He's also a songwriter advocate and the Director of the Copyright Forum at Belmont University in Nashville, and he says the current marketplace conditions are making it extremely difficult especially for new writers, since publishers can't afford to invest in a writer and help them grow their career over time.
"There's no longer an economic system that supports that, so lots of songwriters who aren't instantly lucky or don't just happen to do whatever the most current trend is, the person who might have to wait five years for the marketplace to come around to what they do, there's often not the wherewithal there for them to survive. They have to do something else."
Even for a writer in Bogard's position, the playing field is slanted against songwriters and publishers in a way that's almost impossible to conceive of in any other line of work. Imagine a profession in which you have no ability to negotiate the value of your own work, and no ability to refuse to work in a situation that you feel doesn't pay well enough. Incredibly, that's the exact set of circumstances American songwriters are in when it comes to streaming and downloads, due to outdated legislation that does not address the changing marketplace.
As a result, American songwriters are forced to operate under consent decrees that date back to the 1940s, when the government stepped in to address perceived anti-trust issues because ASCAP and BMI controlled so much of the business. There are also still even older rules on the books that in some cases were originally meant to apply to sheet music.
"Songwriters are under rules from 1909 and 1941, federal government rules, and they essentially do three bad things," Herbison says. "First, the government sets the royalty rate for songwriters. We don't get to negotiate it in the free market like record labels do. No. 2 , the judges that set the rates cannot consider what record labels make, or what others in the music industry make. They're under a crazy standard of evidence that essentially deals with the cost of music to the consumer. And No. 3, whether we agree with those rates and those rules or not, we are bound under what's called compulsory licensing."
Compulsory licensing dictates that a songwriter actually must license the use of their work to entities that want to use it — and since the rates are set by government panels, there's no negotiation.
"If I wanted to say to Spotify, 'Forget it, you can't have any Steve Bogard songs,' I can't do that, even if I control them," Bogard explains. "It's a completely untenable position. I would honestly write a letter right now to Spotify and say, 'Keep it. Don't play any of my songs. Keep the money. There's not enough there.'"
A recent decision by the Department of Justice has even harsher implications for songwriters, not only financially, but even in the creative end of the job. According to songwriters and advocates, the recent ruling on 100 percent licensing will have a profoundly negative impact on the songwriting community. The ruling allows for a streaming service to license an entire work through just one of the performing rights organizations involved, instead of approaching all of them, which passes along the paperwork and complications on how to get paid to the various PROs.
"The DoJ ruled that if a streaming service goes to ASCAP, ASCAP gets to license the entire work, and then pass through — at their rate and with their administrative costs and with their time lag — they could pass through that money to other PROs. Which allows services like Pandora, Spotify and Rhapsody to rate shop," Bogard says. "Now the lawsuits are gonna come screaming out of the woodwork, because it flies in the face of how everyone does business."
That could very well mean that songwriters might not collaborate as freely in the future. Songwriter Tim Nichols counts "Live Like You Were Dying" as one of his hits, and he testified before the Department of Justice that if that ruling had been in place at the time, he probably wouldn't have written the song — which is widely considered one of the most important country songs of the past 20 years — at all, since he's a BMI writer and his co-writer, Craig Wiseman, is affiliated with ASCAP.
"Nobody wants to have to do a contract every time you go into a writer's room, and nobody wants to be put in the position of paying their co-writers," Herbison points out.
Bogard says the grim economic realities of songwriting could potentially impact creativity in other ways.
"In the current climate, radio singles are about all we have left. So in the back of every writer's mind, I think, if they're a professional is the fact that it would be good if this was a radio single," he acknowledges. "I don't think people compromise specifically, or try to compromise, but if there's a fork in the road, and one says 'radio single' and one says 'no,' most of us choose radio single."
Songwriter advocates say that what they'd like to see is sweeping reform to the copyright laws that would allow songwriters to compete in a free market, instead of getting paid by the dictates of byzantine government regulations. But nobody involved believes that's realistic at the moment. The brightest hope for songwriters right now is H.R. 1283, the Songwriter Equity Act of 2015, which seeks to address the manner in which the rate court judges are allowed to consider the evidence.
"We could ask Congress to do some really bold things, like remove all these restrictions, but it's clear, politically, that they are not going to do that," Herbison says. "The Songwriter Equity Act changes the standard of evidence, and it simply lets the judges that set our rates look at everything else in the marketplace, what others in the industry make, and essentially it's called willing buyer willing seller. What's the song's value in the marketplace? And that's a moderate reform we're trying to accomplish right now."
I would honestly write a letter right now to Spotify and say, 'Keep it. Don't play any of my songs. Keep the money. There's not enough there.'
"The Songwriter Equity Act simply says that they may look at, for example, the disparity in Pandora, which pays 14 times the royalties to the artists and label copyright as it does to the [writer's copyright]. Spotify in the free section, it's more like 17 to 1. It would let them look at that disparity if they wanted to," Bogard clarifies.
But even that moderate reform faces an uncertain future, due to the lobbying power of big tech companies like YouTube and streaming services, who reap enormous profits from exploiting copyrights while paying out very little money to the songwriters who created those works. Songwriters and advocates charge that those tech companies and their lobbyists are trying to keep the rates artificially depressed to their own economic gain.
Congressman Jim Cooper [D-TN] is one of the co-sponsors of the bill, and he tells Taste of Country that despite a degree of bi-partisan support, Congress is gridlocked on this issue as on so many others.
"It's very complicated, and in general the problem with all legislation is lobbying. Because we're outnumbered 3-to-1 to 6-to-1 by lobbyists in Washington, professionals," he states. "Another obstacle is just the complexity of the issues, and the willingness of folks who are not from Nashville to focus on these issues. We're blessed in Nashville to have so many creative people, but the only cities that compare with us that way are L.A. and New York. Your average town in the country really doesn't focus on these issues, except to want to appease their radio stations and their consumers for downloading. And sadly, they want to download for free as much as they can."
"We had [Congressman] Bob Corker [R-TN], years ago, come out of a meeting with Music Row and advocates, and I remember him saying, 'I was just in Greenland for three days having our entire missile defense system explained to me, and I finally got it, but I don't know how the hell you people get paid,'" Bogard relates with a rueful laugh.
There's also a battle going on right now between American songwriters and Sony over the upcoming Copyright Royalty Board decision on royalty rates on actual sales of downloads and CDs, which are decided once every five years.
"For decades we've agreed on what that royalty rate would be with record labels, until this time. Out of the clear blue sky, Sony Music Entertainment wants songwriters to take a pay cut, when record labels already get six to 14 times more money from streaming than songwriters do," Herbison says.
"Here's the real kicker: Sony doesn't even pay the songwriters those royalties, The subscription services do. We're shocked that they're sticking their hands into it, and our conclusion is that they think if we get less, they can get more. It's also reported that Sony owns a part of Spotify. So we just think the motives are greedy and unnecessary at a time when the music industry needs to be coming together, not fighting each other."
In general the problem with all legislation is lobbying. Because we're outnumbered 3-to-1 to 6-to-1 by lobbyists in Washington.
Herbison is hopeful that fight can be resolved before it goes to court in March. A representative from Sony's legal department did not respond to Taste of Country's request for comment.
Bogard feels that future legislation may need to address anti-trust issues related to large companies and what kind of holdings they're allowed to have, but for now, H.R. 1283 is the best thing on the table for American songwriters. Congressman Cooper says that is going to continue to be an uphill battle.
"No law emerges unscathed from hearings. This law seemed to have some impetus in the past. By now we're at the end of this current Congress, so it's going to be very difficult to get anything done," he says. "Any legislation would have to come out of the Judiciary Committee. I'm not on the Judiciary Committee, but it's a particularly partisan and contentious committee. Doug Collins [R-GA] has been the primary mover, and that's good because you want a Republican to lead the way, but we've seen very little action in this Congress."
With so few working days left in the current Congress, Cooper adds, "it looks as if we're gonna have to go back to the drawing board and figure out something that could get majority support."
Until then, songwriters and publishers are having to focus more and more on sync rights for films, television and commercials, which is the only part of the U.S. market in which they can negotiate for themselves. Bogard expects for things to continue to be difficult until more sweeping changes can address some of the fundamental issues.
"I'm afraid we're in a period of turmoil and chaos and re-grouping," he says. "That's really where we are, and there are things to be sorted out. Going to Congress with a unified music business platform, there are lots of questions to be answered before that can happen, and Congress will not listen to the various factions. They don't want to know who gets the dog in the divorce. They want to say, 'Okay, you're a tiny little business -- you were $40 billion 10 years ago, and now you're $14 billion. That's a small industry compared to, that's 10 percent of Verizon. So tell us what you want, and tell us quick, and have your act together.' Which is hard."
Herbison remains cautiously optimistic that at least some relief may be on the way. He expects a vote on a bill during the next session of Congress, which starts in 2017
"So we've been studying, posturing, proposing, opposing for four years, and it's down to decision time," he says.
He also hopes that consumers will educate themselves about the impact their consumption choices have on the songwriters whose work they enjoy.